﻿Government agencies working to legislate back doors into data-encryption systems claim that such access is the only way to prevent criminals from operating with impunity on the Internet. The proponents of mandatory back doors never explain how they will enforce the prohibition on unbreakable encryption. The fact is, the bullet-proof-encryption genie is out of the bottle, and it cannot be legislated back into it.

(Bruce Schneier’s July 9, 2015, post on his Schneier on Security blog links to a white paper written by encryption experts that explains why encryption back doors do more harm than good.)

Criminals “going dark” is one thing, but it’s quite another for the government itself to start operating in secret. In a May 6, 2016, post on Just Security, Stephen Wm. Smith writes that in the past 40 years, secrecy in the judiciary has grown to “unprecedented levels.” According to Smith, the first secret court in the U.S. was created by Congress in 1978 via the Foreign Intelligence Surveillance Act (FISA). The proceedings of FISA courts are “ex parte and mostly secret,” as Smith writes, although Edward Snowden’s revelations in 2013 shed some light on how the courts operate, as the Washington Post’s Brian Fung reports in a September 13, 2013, article.

A more perilous threat to privacy is posed by secret dockets, which were first authorized by the 1986 Electronic Communications Privacy Act (ECPA). ECPA allows the government to access our cell phone and Internet communications and records, and allows courts to order that the surveillance records be sealed permanently. In addition, service providers are “routinely” slapped with gag orders preventing them from disclosing to their customers that the government has accessed the customers’ email, phone calls, and messages.

Microsoft takes the privacy-rights fight to the government

In April 2016, Microsoft sued the U.S. Justice Department (Microsoft Corp. v. United States Department of Justice, 16-cv-00538, U.S. District Court, Western District of Washington), claiming that ECPA gag orders constitute prior restraint of the company’s First Amendment right of free speech, as Bloomberg’s Dina Bass writes in an April 14, 2016, article. Microsoft also charges that the ECPA violates its customers’ Fourth Amendment right to be protected against warrantless searches and seizures of their property.

Bass writes that since the second half of 2015, federal courts have issued close to 2,600 secrecy orders directed specifically at Microsoft, more than two-thirds of which had no fixed end date, according to Microsoft. The company has taken a lead role in defending the rights of its customers against what it considers government over-reaching in demanding access to the private information of consumers and businesses.

Microsoft has also sued the government over access to its customers’ information stored on servers located overseas. Other companies fighting government attempts to access information in secret include Twitter and Yahoo: Twitter wants to disclose the number of national security letters it receives from the FBI beyond the current government limit of “bands of 1,000,” according to Bass; and Yahoo won a case against the government in 2015 that involved an attempt to prevent Yahoo from disclosing the existence of a grand jury subpoena. The federal judge rejected the government’s secrecy petition as prior restraint on Yahoo’s First Amendment right to inform the public when the company is involved in the government’s attempt to search and seize information.

Judicial warrants now extend to all computers, everywhere

A simple change in the Federal Rule of Criminal Procedure now allows judges to issue warrants that give authorities permission to search computers – any computers – far outside the judges’ jurisdiction. Ars Technica’s David Kravets reports on the change in a May 4, 2016, article. The new Rule 41 (pdf) allows judges to issue a single warrant that applies to multiple computers located anywhere. As Kravets writes, the Fourth Amendment requirement that a warrant state with particularity what is being searched “is out the door.”

Also eliminated is the government’s need to provide the party being searched with notice of the search. These unprecedented powers were granted to law enforcement without any action by Congress. The changes were proposed by a committee of federal judges, lawyers, law professors, state chief justices, and officials from the Department of Justice. The Supreme Court approved the proposal earlier this month, so it’s unlikely to deny them later. The changes become law unless Congress rejects them by December 1, 2016.

Kravets calls the new rule “a massive expansion of the surveillance state,” yet Congress played no part in its enactment. Democratic Senator Ron Wyden of Oregon has pledged to introduce legislation that would cancel the new Rule 41. Wyden’s statement on the matter points out that policy changes of such significance “are clearly a job for Congress, the American people and their elected representatives, not an obscure bureaucratic process.”I couldn’t agree more.